tals,) the visitatorial power is deemed to belong to the trustees in their corporate character. (a)

The visitors of an incorporated institution are a domestic tribunal, possessing an exclusive jurisdiction, from which there is no appeal. It is an ancient and immemorial right given by the common law to the private founders of charitable corporations, or to those whom they have nominated and appointed to visit the charities they called into existence. The jurisdiction is to be exercised within the bosom of the corporation, and at the place of its existence. (b) Assuming, then, (as is almost universally the fact in this country,) that the power of visitation of all our public charitable corporations is vested by the founders and donors of the charity, and by the act of incorporation in the governors or trustees who are the assignees of the rights of the founders, and stand in their places, it follows that the trustees of the college may exercise their visitatorial power in sound discretion, and without being liable to any supervision or control so far as respects the government and discipline of the institution, and so far as they exercise their powers in good faith, and within the limits of the charter. They may amend and repeal the by-laws and ordinances of the corporation, remove its officers, correct abuses, and generally superintend the management of the trust. (c)

This power of visitation Lord Hardwicke admits to be a power salutary to literary institutions; and it arose from the right which every donor has to dispose, direct, and regulate his own property as he pleases; cujus est dare ejus est dis

(a) Story, J., in 4 Wheaton, 674, 675. 1 Blacks. Com. 482. Case of Sutton's Hospital, 10 Co. 33 a, b. Philips v. Bury, supra. Green v. Rutherforth, 1 Ves. 462. Attorney-General v. Middleton, 2 Ves. 327.

(b) The visitor is to proceed, whether upon a general visitation or a particular appeal summarie, simpliciter, et de plano sine strepitu aut figura judicii, per Lord Mansfield in The King v. The Bishop of Ely, 1 Blacks. Rep. 82.

(c) The visitatorial power is applied to control and correct abuses, and to enforce a due observance of the statutes of the charity, and it is not a power to revoke the gift, or change its uses, or to divest the rights of the parties to the bounty. Where the power is vested in trustees, it is an hereditament founded in property, and there can be no amotion of them from their corporate capacity, or interference with the just exercise of their power, unless it be reserved by the statutes of the foundation or charter, except in chancery for abuse of trust. Allen v. McKeen, 1 Sumner, 276.

*303 ponere. *Though the king or the state be the incipient founder, (fundator incipiens,) by means of the charter or act of incorporation, yet the donor or endower of the institution with funds is justly termed the perficient founder, (fundator perficiens;) and it was deemed equitable and just at common law that he should exercise a private jurisdiction as founder in his forum domesticum over the future management of the trust. (a)1 But as this visitatorial power was in its nature summary and final, and therefore liable to abuse, Lord Hardwicke was not disposed to extend it in equity. It is now settled that the trustees or governors of a literary or charitable institution, to whom the visitatorial power is deemed to vest by the incorporation, are not placed beyond the reach of the law. As managers of the revenues of the corporation, they are subject to the general superintending power of the court of chancery, not as itself pos

sessing a visitatorial power or right to control the charity, *304 * but as possessing a general jurisdiction in all cases of

an abuse of trust, to redress grievances, and suppress frauds. Where a corporation is a mere trustee of a charity, a court of equity will yet go further; and though it cannot appoint or remove a corporator, it will, in a case of gross fraud, or

(a) The case of Sutton's Hospital, 10 Co. 33 a. Green v. Rutherforth, 1 Ves. 472. The institution of Sutton's Hospital Lord Coke extolled as a work of charity surpassing any foundation "that ever was in the Christian world, or that was ever seen by the eye of time." (Pref. to 10 Co.) The founder was Thomas Sutton, and his object was to establish a hospital for the relief of such poor, aged, maimed, needy, and impotent military men, and captives in war, and other persons as should be deemed fit objects; and to establish a free school for the maintenance and education of poor children in good literature; and provision was likewise to be made for the maintenance of religious instruction in the hospital, under the superintendence of a grave and learned divine. His real estate appropriated consisted of the charter-house in the county of Middlesex, and twenty acres of land, yielding when Lord Coke reported the case, an annual income of £3,500 sterling, and which he said would shortly be £5,000. This charitable purpose was aided and carried into effect by a liberal charter from King James; and the most illustrious names in England were nominated by the founder, and inserted in the charter, as governors; and the charter received, on discussion, the sanction of all the judges in the exchequer chamber. Such a case reflected lustre on that age; and, considering it under all its circumstances, it was preeminent for the benevolence of its object as well as for the munificence of the donation.

1 If the property is given absolutely, unless the donors are actually the founders, they will have no right of visitation. Kemper v. Trustees of Lane Seminary, 17 Ohio R. 293.

abuse of trust, take away the trust from the corporation, and vest it in other hands. (a)

There is a marked and very essential difference between civil and eleemosynary corporations on this point of visitation. The power of visitors, strictly speaking, extends only to the latter; for though in England it is said that ecclesiastical corporations are under the jurisdiction of the bishop as visitor, yet this is not that visitatorial power of which we have been speaking, and which is discretionary, final, and conclusive. It is a part of the ecclesiastical polity of England, and does not apply to our religious corporations. The visitatorial power, therefore, with us, applies only to eleemosynary corporations. Civil corporations, whether public, as the corporations of towns and cities, or private, as bank, insurance, manufacturing, and other companies of the like nature, are not subject to this species of visitation. They are subject to the general law of the land, and amenable to the judicial tribunals for the exercise and the abuse of their powers. (b) The way in which the courts exercise common-law jurisdiction over all civil corporations, whether public or private, is by writ of mandamus, and by information in the nature of quo warranto. (c) It is also well understood, that the court of chancery has a jurisdiction over charitable corporations for breaches of trust. It has been much questioned whether it had any such jurisdiction over any other corporations than such as were held to charitable uses. The better opinion seems, however, to be, that any corporation chargeable with trusts, may *305 be inspected, controlled, and held accountable, in chancery, for an abuse of such trusts. With that exception, the rule

(a) Attorney-General v. Governors of the Foundling Hospital, 2 Vesey, jr. 42. Ex parte Greenhouse, 1 Madd. Ch. Rep. 92. Story, J., 4 Wheaton, 676. The strict principles and watchful care of chancery in respect to corporations acting as trustees of charities and charitable funds, and in respect to free schools and all other charitable foundations, are announced with much force in the late English cases, as, see Attorney-General v. Atherstone Free School, 3 Mylne & Keen, 544. Attorney General v. Mayor of Newbury, ibid. 647.

(b) 1 Blacks. Com. 480, 481.

(c) 2 Kyd on Corporations, 174. The remedies against private corporations aggregate for neglect or breach of duty, by the writ of mandamus, and by information in the nature of a quo warranto, are treated at large, and with the most full and satisfactory reference to authorities, ancient and modern, English and American, in Angell & Ames on Corporations, ch. 20 and 21, 3d edit.

is understood to be, that all corporations are amenable to the courts of law, and there only, according to the course of the common law, for nonuser or misuser of their franchises. (a)1

V. Of the dissolution of corporations.

A corporation may be dissolved, it is said, by statute; by the natural death or loss of all the members, or of an integral part; by surrender of its franchises; and by forfeiture of its charter, through negligence or abuse of its franchises. (b)2

This branch of the subject affords matter for various and very interesting inquiries.

In respect to public or municipal corporations, which exist only for public purposes, as counties, cities, and towns, the legislature, under proper limitations, have a right to change, modify, enlarge restrain, or destroy them; securing, however, the property for the uses of those for whom it was purchased. (c) A public cor

(a) Attorney-General v. Utica Insurance Company, 2 Johns. Ch. Rep. 384-390. 1 Ves. 468. 2 Atk. Rep. 406, 407. 3 Merivale's Rep. 375. 4 Wheaton, App. 20, 21. Attorney-General v. Mayor of Dublin, 1 Bligh's Rep. N. S. 312. Sanderson v. White, 18 Pickering, 328. Angell & Ames on Corporations, 3d edit. ch. 19. The New York Revised Statutes, vol. ii. p. 462, have given to the chancellor jurisdiction over the directors and other trustees of corporations, to compel them to account, and to suspend their powers when abused, and to remove any trustee or officer for gross misconduct, and to restrain and set aside alienations of property made by them contrary to law or the purposes of their trust. The power may be exercised as in ordinary cases, on bill or petition, at the instance of the attorney-general, or a creditor, director, or trustee of the corporation; and these equity powers exist in the court of chancery, notwithstanding the like visitatorial powers may reside elsewhere. Ibid.

sec. 34.

(b) 1 Blacks. Com. 485. Angell & Ames on Corporations, ch. 22, 3d edit. In this country, to dissolve a private corporation (1) by statute, there must be a power for that purpose reserved in the statute or charter creating it; (2.) If by surrender, there must be an acceptance; (3.) A loss of an integral part of the corporation, so that the exercise of corporate power cannot be restored, will work a dissolution; (4.) A forfeiture for nonuser or misuser must be by the judgment of a court of law. Penobscot Boom Corporation v. Lamson, 16 Maine Rep. 224. Hodsdon v. Copeland, ibid. 314. (c) Story, J., 9 Cranch's Rep. 52. Greenleaf's Evidence, sec. 331. The People v. Wren, 4 Scammon, 269.

1 See, on the rights of visitors to the power of the Court of Chancery over them. Nelson v. Cushing, 2 Cush. 519.

2 In Mass. by Stat. 1852, c. 55, a majority in number of the corporation may petition the Supreme Court which after notice to all parties interested, may for reasonable cause dissolve the corporation.

poration, instituted for purposes connected with the administration of the government, may be controlled by the legislature, because such a corporation is not a contract within the purview of the constitution of the United States. In those public corporations, there is, in reality, but one party, and 306 the trustees or governors of the corporation are merely trustees for the public. A private corporation, whether civil or eleemosynary, is a contract between the government and the corporators; and the legislature cannot repeal, impair, or alter the rights and privileges conferred by the charter, against the consent, and without the default of the corporation, judicially ascertained and declared.1 This great principle of constitutional law was settled in the case of Dartmouth College v. Woodward; (a) and it had been asserted and declared by the Supreme Court of the United States, in several other cases, antecedent to that decision. (b) But it has become quite the practice, in all the recent acts of incorporations for private purposes, for the legislature to reserve to themselves a power to alter, modify, or repeal the charter at pleasure;2 and though the validity of the

(a) 4 Wheaton, 518.

(b) Fletcher v. Peck, 6 Cranch's Rep. 88. The State of New Jersey v. Wilson, 7 ibid. 164. Terret v. Taylor, 9 ibid. 43. The Town of Pawlet v. Clark, ibid. 292. Grants of property and of franchises, coupled with an interest, to public or political corporations, are beyond legislative control, equally as in the case of the property of private corporations. Story, J., in Dartmouth College v. Woodward, 4 Wheaton, 697-700. Town of Pawlet v. Clark, 9 Cranch's Rep. 292. See, also, supra, p. 275. If a charter or act of incorporation be procured from the legislature, upon some fraudulent suggestion or concealment of a material fact, made by or with the consent or knowledge of the persons incorporated, it may be vacated or annulled upon scire facias, upon the relation of the attorney-general. N. Y. Revised Statutes, vol. ii. p. 579,

sec. 13

1 In Toledo Bank v. Bond, 1 Ohio St. 622, this doctrine was not acknowledged, and the charter of a corporation was declared to be a mere law which the legislature might repeal or amend at pleasure. The assent of a corporation to a change in its charter may be implied from its action. Blandford v. Gibbs, 2 Cush. 39. Commonwealth v. Cullen, 13 Penn. 133. See on the subject of legislative control over corporations, Thorpe v. R. & B. R. R. Co. 1 Wms. 140. R. R. Co. v. Harris, 27 Miss. 517. As to the obligation on the part of the corporation to accomplish the purposes for which it was chartered, see Y. & M. L. R. R. v. Winans, 17 How. U. S. 30, and cases cited.

2 For construction of such clauses and the results of legislative action upon them, see Suydam v. Moore, 8 Barb. 358. Miller v. New York & E, R. R. 21 Barb. 513. E. & N. E. R. R. v. Casey, 26 Penn. 287.